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ELCDismissedNot stated in judgment· [2024] KEELC 6520 (KLR)

Homa Bay Hotels Ltd v County Government of Homa Bay & 2 others (Environment & Land Case E009 of 2023) [2024] KEELC 6520 (KLR)

Environment and Land Court
2 October 2024
GOG. M. A. Ongondo
1,471 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed that judges won't step aside just because a party is unhappy with case-management decisions — real likelihood of bias must be shown.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Homa Bay (G. M. A. Ongondo, J) on a notice of motion dated 11th April 2024 in which the plaintiff/applicant sought the recusal of the trial judge on grounds that his conduct and case-management of the proceedings created a reasonable apprehension of bias, infringed the applicant's Article 50(1) right to a fair hearing, and destroyed the applicant's confidence in obtaining justice before him. The applicant complained that the court declined to certify his application dated 21st March 2024 as urgent, failed to grant interim injunction or status quo orders to preserve suit land on his beach front property despite alleged illegal excavations by the 1st defendant, and instead fixed the matter for directions and mention on the 1st defendant's preliminary objection dated 19th January 2024. The 1st defendant opposed, contending no apprehension of bias had been demonstrated and grievances lay on appeal; the 2nd and 3rd defendants likewise opposed. The court framed two issues: whether the application was merited and what orders would meet the ends of justice. Applying the fair-minded and informed observer test from Porter v Magill as adopted in Philip Tunoi v JSC, the court held that prioritising the preliminary objection on jurisdiction was proper since jurisdiction is everything and a preliminary objection may dispose of the suit. The application was dismissed with costs to the respondents.

Key legal issues

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01

Whether the conduct and case-management decisions of the trial judge created a reasonable apprehension of bias warranting recusal

Holding

The application failed; the judge's direction that the preliminary objection on jurisdiction be heard on priority basis was a proper exercise of judicial authority, not bias

Reasoning

The court applied the fair-minded and informed observer test from Porter v Magill, as adopted in Philip Tunoi v JSC. The applicant's complaints related to case-management decisions: declining to certify urgency, not granting interim or status quo orders, and prioritising the preliminary objection. Given that jurisdiction is everything and a preliminary objection may dispose of the suit, prioritising it was proper. The grievances, if any, lay on appeal, not recusal.

p. 4

Legal principles established

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  • Justice must not only be done but also be seen to be done
  • The test for recusal is whether the fair-minded and informed observer, having considered the facts, would conclude there is a real possibility of bias
  • A preliminary objection is a point of law which, if argued as a preliminary point, may dispose of the suit
  • Jurisdiction is everything; without it a court has no power to take one more step

Court orders

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  1. 1.The application for recusal be and is hereby dismissed with costs to the respondents
Jurisdiction invoked
Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, Chapter 21 Laws of Kenya and Order 51 of the Civil Procedure Rules, 2010; Environment and Land Court Act, 2015

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Homa Bay Hotels Ltd v County Government of Homa Bay & 2 others (Environment & Land Case E009 of 2023) [2024] KEELC 6520 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6520/eng@2024-10-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.